The Gender Divide: When Legal Standards Are Not “Standard”

The inequality of men and women under the Constitution has been a hot-button issue for decades, and doesn’t appear to be going away fast enough. Shifting legal standards have made defining, reporting, and prosecuting gender discrimination or sexual misconduct even more problematic. This gender inequity is all too prevalent in our educational institutions, particularly where women are involved in traditionally male-dominated groups or activities.

Female student-athletes and service academy cadets experience some of the most pervasive discriminatory treatment by their peers, coaches, professors, and superiors. Furthermore, our current laws, intended to protect victims of sexual mistreatment and gender bias, are still full of legal loopholes, which educational institutions and aggressors consistently take advantage of. MoFo lawyers in San Francisco and Washington, D.C. are taking action to overturn a number of court rulings where the law has failed the individuals it should be protecting.

Leveling the Playing Field for Female Student-Athletes

On December 8, 2020, San Francisco litigation attorneys Christine Wong, Randy Zack, and Rachel Dolphin and Tokyo litigation attorney Lily Smith filed an amicus brief in the Second Circuit Court of Appeals on behalf of a female soccer player from the University of Connecticut (“UConn”) whose goal-scoring celebration, which included briefly showing her middle finger during a nationally televised championship game, was classified as inappropriate conduct and resulted in the revocation of her scholarship.

As noted in the brief, “This was an unprecedented disciplinary decision. Never before had a student-athlete lost his or her scholarship based on a first-time sportsmanship issue. And never before had a student-athlete lost his or her scholarship halfway through the year for unsportsmanlike conduct.”

Additionally, the brief argues that female athletes have consistently faced two forms of discrimination: they are afforded fewer athletic opportunities than men, and they are often held to a stricter standard of conduct that requires them to conform to traditional female behavioral norms. MoFo argued that UConn did not revoke the client’s scholarship because her gesture constituted “serious misconduct,” as the school claimed, but instead revoked her scholarship because UConn found the gesture to be “serious misconduct” when committed by a woman.

The student filed a Title IX lawsuit against her former university, attempting to prove the inequity of the disciplinary action by pointing to numerous incidents where male student-athletes at UConn committed even worse (sometimes criminal) infractions, and received little to no discipline.

“The record is replete with examples of UConn choosing to impose limited or no discipline on male student-athletes who committed more serious infractions,” states the brief. Despite the disciplinary record, or lack thereof, against male student-athletes, MoFo’s brief makes clear that the Circuit should consider two points of contention regarding Title IX protections: firstly, whether male and female student-athletes were held to the same standards of conduct, and secondly, whether the plaintiff’s conduct was comparable or less serious than that of her male counterparts, and “if the answer to both questions is ‘yes,’ as it is here, and the plaintiff was nevertheless punished more harshly, then a jury should decide whether the defendant’s decision was, at least in part, motivated by the plaintiff’s sex.”

Despite the plaintiff’s Title IX suit, her claims were dismissed due to the trial court’s interpretation of the legal standard for reporting infractions, requiring that complainants prove male student-athletes had been subjected to lesser discipline than female student-athletes imposed by the same coaching staff.

If allowed to be applied more broadly, the legal standard dismissing the student-athlete’s claims would gut Title IX protections for hundreds of thousands of student-athletes because there are very few college athletic programs in which female and male student-athletes have the same coaching staff.

In summary, the brief holds that this same-supervisor requirement would not only nullify Title IX protections for student athletes across the country, but “allow the imposition of discriminatory stereotyping, and subject female students to a stricter code of conduct than their male counterparts. This would result in an even greater disparity in collegiate athletic and scholarship opportunities for women than already exists.”

MoFo’s brief was filed on behalf of amici Legal Momentum, the National Organization for Women Foundation, the Feminist Majority Foundation, and the Clearinghouse on Women’s Issues.

Read the full brief here.

Supreme Court Filing on West Point Sexual Assault Case

While certain protections for victims of sexual misconduct have taken shape in our traditional institutions, an enormous legal loophole still exists in our Nation’s military and service academies called the Feres doctrine, a judicial invention that shields the military from tort liability for injuries that are deemed “incident to” military service.

Washington, D.C. litigation attorneys Brian Matsui and Adam Sorensen filed a brief at the United States Supreme Court on November 30, 2020, in support of a certiorari petition for a woman who brought constitutional and tort claims after she was raped by a fellow cadet while attending the U.S. Military Academy at West Point. The petitioner’s tort claims were dismissed under a broad application of the Feres doctrine.

We represent graduates of the service academies as amici who describe the pervasiveness of sexual harassment and assault in the service academies, the failure of the academies to address these issues despite their legal obligations to do so, and the impact of these failings on the plaintiff as well as other women students. The brief also notes that service academies are exempt from Title IX and its requirement of equal educational opportunity, which has allowed women to hold other colleges liable for similar failures.

“Overbroad application of the Feres doctrine has left cadets at the service academies truly defenseless against pervasive sexual violence on campus,” notes Adam. “These young men and women are no different than other college students. They deserve a chance to seek relief in court when their schools fail to protect them. Hopefully, the Justices will recognize that this doctrine has far exceeded its original justifications.”

The amici support the petitioner’s request that the Supreme Court either abolish or limit the Feres doctrine. As the brief notes, the U.S. military’s failure to curb the rampant sex discrimination that flourishes on the campuses of its service academies condemns the “brightest aspiring officers” to “an impossible choice: endure years of sexual aggression or abandon their careers.” With this brief, the amici hope to persuade the Court to “correct that manifest injustice.” The Supreme Court directed the government to respond to the petition, an indication of the Court’s possible interest in the case.

Read the full brief here.